In integrative negotiation, both parties aim to create and claim value while considering the long-term health of their relationship. One common workplace example is the use of non-compete agreements: employers may ask prospective employees to agree not to work for competitors in the future—but it’s important to remember that such terms are often open to negotiation.
It’s also important to remember something else: the rules around non-competes have been changing quickly in recent years, and what’s enforceable (or even allowed) can depend heavily on where you work, where the employer is located, and what kind of role you have. A proposed federal crackdown made headlines in 2024, but it never took effect and is not enforceable as of 2026, after litigation and subsequent FTC actions.
Back in the fall of 2010, journalist Christopher Flores was looking for a job in Chicago. As he recounts in an article in the Chicago Reader, he came across listings for staff writer positions at local online coupon company Groupon. Intrigued by the witty style in which Groupon’s daily deals were described, Flores sent in a writing sample and was invited to attend a seminar called “Groupon Academy,” where he and about 30 other prospective employees would be educated about the company and given a chance to write a freelance Groupon ad.
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To attend the seminar, however, Flores was told he would need to sign a freelancer contract that included a clause barring him from working for any of Groupon’s competitors “in any capacity” for the next two years. Flores was unwilling to swear off future job prospects for what might amount to only one day of work. Without a signed contract, a Groupon recruiter told him he could not attend the seminar.
Flores’s story may be more than a decade old, but the underlying lesson is stubbornly current: restrictive clauses show up in surprising places—sometimes even before a full-time offer is on the table—and you may have more room to negotiate than you think.
Proprietary Information and Exclusive Relationships in Negotiated Agreements
To protect proprietary information, companies often ask prospective employees to sign non-compete agreements that bar them from working for competitors for a certain amount of time and sometimes within a specific geographic region.
Typically, these requests come after a job offer has been extended—often alongside other paperwork that can feel “standard,” “boilerplate,” and “non-negotiable.” Flores’s experience underscores the fact that non-competes (and their close cousins) abound in the job marketplace—and in many cases, you should negotiate before signing on the dotted line.
One more modern wrinkle: because non-compete rules vary widely by state—and continue to evolve—“standard” language in a contract is not the same thing as “safe,” “enforceable,” or “reasonable.” (More on that shortly.)
Negotiation in Business: The Basics of Non-Compete Agreements
Employers draft non-compete agreements to limit turnover and protect client lists, confidential strategies, and other sensitive information. In Flores’s case, Groupon may have been interested in guarding the distinctive, quirky voice of its ads; arguably, the company could spend time and money training writers who then take their new skills to competitors. And a Groupon recruiting manager told Flores that its writers had access to “sensitive financial and sales records” that needed to be guarded.
In most cases, companies require new hires to sign non-compete agreements as part of an employment contract. Sometimes, however, employers include non-compete clauses in separation agreements with employees.
Two examples from the world of television made headlines:
- As part of his $32.5 million severance package with NBC, talk show host Conan O’Brien agreed in early 2010 not to launch a new television show for nine months.
- A year later, upon his departure from NBC Universal, MSNBC personality Keith Olbermann negotiated a $7 million separation agreement that prohibited him from working on other major TV networks for several months. Soon after, Olbermann signed on to anchor a show on Current TV, a low-profile network not listed in his non-compete agreement.
In both deals, the TV stars agreed not to bad-mouth their former employers and were prohibited from giving interviews for a set period of time. Olbermann also agreed not to discuss his deal publicly—adding intrigue to his on-air announcement until details leaked to the media.
The celebrity scale is unusual; the structure is not. Employment contracts and separation agreements often bundle multiple restrictions together (non-compete, non-solicit, NDA, non-disparagement), and negotiators are wise to treat them as a package rather than a single line item.
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Salary Negotiations: Is a Non-Compete Agreement Really Necessary?
Employers can have legitimate reasons for asking employees to sign non-compete agreements. But as a prospective employee, you also have compelling motives to negotiate an employment contract that won’t put you in a straitjacket if you are laid off—or if you discover the job isn’t a good fit.
If an employer asks you to sign a non-compete agreement, consult an employment attorney in your area. Legal review may cost money upfront, but it can be far less expensive than litigating later—especially if an employer alleges breach.
It’s also not enough anymore to rely on “what employers usually do.” Non-compete law has become a fast-moving patchwork. For example:
- Federal: The FTC issued a final rule in April 2024 intended to ban most post-employment non-competes, but it was blocked in court and is not in effect or enforceable; in September 2025, the FTC took steps to dismiss its appeals and accede to the rule being vacated.
- State: Some states severely restrict non-competes or treat many of them as void. California, for instance, has long limited non-competes and expanded its approach in 2024, including employer notice obligations for certain non-compete language.
- Threshold-based states: Other states limit non-competes for lower-earning workers and set earnings thresholds that change over time (Illinois is one example).
That means a clause that looks “normal” could still be (a) unenforceable, (b) overbroad, or (c) negotiable precisely because the employer may not want to defend it.
How to Avoid a Non-Compete Clause (or Narrow It) Without Setting Off Alarms
How can you avoid signing a non-compete agreement altogether? Start by being direct—but practical.
Explain your concerns to the hiring manager, such as the fear of being unemployable in your field in the event of unforeseen layoffs. Then ask a calm, businesslike question:
- “What specific risk are you trying to protect against?”
If the company is worried about trade secrets, it might agree to replace a non-compete clause with a stronger nondisclosure agreement (NDA). If the non-compete is meant to keep you from poaching clients, a non-solicitation agreement (limited to certain clients and a reasonable time period) might accomplish the same goal with less damage to your future.
What if the company won’t explain its interests—or refuses to budge? That may be a sign you should look for a more flexible employer… or at least factor the restriction into your compensation and risk calculus.
What’s Negotiable?
Other key terms of a non-compete (or related restrictive covenant) may be open to negotiation—especially if the employer uses the same boilerplate language in every contract.
Groupon’s non-compete agreement prohibited job applicants from working for its “competitors,” a term the company didn’t define, Flores writes in the Chicago Reader. It was unclear whether Groupon narrowly viewed its competitors as other online coupon companies, or whether it also meant newspapers and media outlets that run coupon promotions.
If a company uses vague contract language, insist on greater clarity. Then, if necessary, negotiate to expand your future employment options.
Here are the variables that are most often negotiable:
- Definition of “competitors.” Ask for a clear list, category definition, or named competitors—anything more concrete than “any competitor in any capacity.”
- Geographic scope. If the company is worried about local competition, the agreement ideally should specify a reasonable region. (Hair salons sometimes ask stylists not to work for other salons in the same town for a set period.) When geography is an issue, negotiate the smallest region that actually protects the employer’s legitimate interest.
- Time period. Six months? One year? Two? If the timeline seems arbitrary, ask what business reality justifies it—and propose a shorter term.
- Role scope. “In any capacity” is often the sneakiest phrase in the document. Narrow the restriction to roles that would genuinely threaten proprietary information or key client relationships.
- Triggering events. If you’re laid off without cause, should the restriction still apply? Many employees negotiate carve-outs tied to termination circumstances.
- Consideration/compensation. If the employer wants you off the market for a period of time, you can negotiate compensation that makes the restriction tolerable—sometimes as a higher salary, a signing bonus, severance terms, or “garden leave” style pay during the restricted period.
Finally, you might follow Olbermann and O’Brien’s lead by using a non-compete as leverage on another issue (such as a higher salary or, in the case of a separation agreement, a bigger severance payment). If you’d be walking away with a comfortable financial cushion, being “off the market” for a set time could become a blessing rather than a curse.
Balancing Both Sides’ Interests in the Negotiated Agreement
Employers often have sound reasons for requiring new employees to commit to restrictive covenants. Before you sign on the dotted line, make sure you understand that rationale—and that you’ve negotiated a contract that balances both sides’ interests, in light of the reality that enforceability and legality can vary dramatically by jurisdiction and role.
Have you ever had to negotiate a non-compete agreement? Share your story in the comments.
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Originally published in 2014.
What if you are a remote worker in a state that has banned Noncompete Agreements (IL), but your employer is located in a different state where the agreement is enforced? Would the Noncompete Agreement then be deemed null/void because one’s physical work is performed in the state where it’s banned?
Noncompete are common in medicine and for specialists can be very limiting due to the wide geographic parameters. No one is looking at how the consolidation of large health systems puts individual physicians against a these large monopolistic healthcare systems that don’t need to negotiate any more. What negotiation tactic could one use?!
This is a great write up succinct and straight to the pointIt raises issues of importance and gives answers to the questions at issue
” If the noncompete is meant to keep you from poaching clients, a non-solicitation agreement that prevents you from pursuing key clients might do the trick, employment attorney Mark J. Girouard told Forbes.com.”
How do you define “key clients”?
What integrative solution might there be for negotiating the time of a non color non solicitation agreement.?
This is especially more difficult for someone who is a private freelance teacher for example.